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This site last updated on April 22, 2010 |
Military Family Leave Provisions of the FMLA (Family
and Medical Leave Act) Frequently Asked Questions and
Answers Q.
What are the military family
leave provisions of the FMLA? A.
On January 28, 2008, President
Bush signed into law new FMLA leave entitlements for military families
(“military family leave provisions”). The National Defense Authorization Act
for FY 2008 (“NDAA”), Public Law 110-181, amended the FMLA to provide two
types of military family leave for FMLA-eligible employees. The new FMLA
regulations include these two types of military family leave referred to as
“qualifying exigency leave” and “military caregiver leave.” The
FMLA was amended again in October of 2009. Q.
Are all employers required to
provide military family leave to their employees? A.
No. The FMLA applies only to
public agencies, including state, local and federal employers, local educational
agencies (schools), and private sector employers that employ 50 or more
employees. Q.
Are all employees of a covered
employer entitled to take military family leave? A.
No. To be eligible to take
FMLA leave for any qualifying reason, an employee of a covered employer must
have worked for the employer for a total of 12 months, have worked at least
1,250 hours over the previous 12 months, and work at a location where at least
50 employees are employed by the employer within 75 miles. Q.
Is military family leave paid?
A.
No. The FMLA only requires
unpaid leave. However, the law permits an employee to elect, or the employer to
require the employee, to use accrued paid leave for some or all of the FMLA
leave period. An employee’s ability to elect to use accrued paid leave during
a period of FMLA leave is determined by the terms and conditions of the
applicable paid leave policy. Qualifying Exigency
Leave Q.
What is “qualifying exigency
leave”? A.
“Qualifying exigency
leave” is one of the two new military family leave provisions. It may be taken
for any qualifying exigency arising out of the fact that a covered military
member is on active duty or call to active duty status. The Department’s new
regulations include a broad list of activities that are considered qualifying
exigencies and will permit eligible employees who are family members of a
covered military member to take FMLA leave to address the most common issues
that arise when a covered military member is deployed, such as attending
military-sponsored functions, making appropriate financial and legal
arrangements, and arranging for alternative childcare. For a complete list of
qualifying exigencies, see the questions below. Q.
Who is a “covered military
member”? A.
A covered military member is
the employee’s spouse, son, daughter, or parent who is on active duty or call
to active duty status. Q.
What is “active duty or call
to active duty status”? A.
Active duty or call to active
duty status refers to a member of the National Guard, Reserves or Regular Armed
Forces deployed to a foreign country, who
is under a call or order to active duty (or has been notified of an impending
call or order to active duty) in support of a contingency operation. Q.
Are families of service
members in the Regular Armed Forces eligible for qualifying exigency leave? A.
Yes. The statute passed by
Congress providing these new military family leave entitlements only extended
the right to take FMLA leave because of a qualifying exigency to family members
of National Guard, Reserves, Regular Armed Forces deployed to a foreign country,
and certain retired military. Q.
Can I take qualifying exigency
leave if my son or daughter is 18 years old or older? A.
Yes. The new FMLA regulations
contain special definitions for son and daughter for both of the military family
leave provisions. For qualifying exigency leave, an eligible employee may take
leave for his or her “son or daughter on active duty or call to active duty
status,” which is defined as the employee’s biological, adopted, or foster
child, stepchild, legal ward, or child for whom the employee stood in loco
parentis, who is on active duty or call to active duty status, and who is of any
age. Q.
Can I take qualifying exigency
leave if the covered military member is my stepson or stepdaughter?
Alternatively, can I take qualifying exigency leave if the covered military
member is my stepparent? A.
Yes. Under the FMLA for
qualifying exigency leave, a “son or daughter on active duty or call to active
duty status” means the employee’s biological, adopted, or foster child,
stepchild, legal ward, or a child for whom the employee stood in loco parentis,
who is on active duty or call to active duty status, and who is of any age.
Additionally, under the FMLA for qualifying exigency leave, a “parent” means
a biological, adoptive, step or foster father or mother, or any other individual
who stood in loco parentis to the employee when the employee was a son or
daughter. This term does not include parents “in law.” The
law does not include son-in-law, or daughter-in-law. Q.
How will I know whether a
covered military member has been called to or is on active duty in support of a
“contingency operation?” A.
A covered military member’s
active duty orders will generally specify whether he or she is serving in
support of a contingency operation. You also may confirm whether a particular
service member is serving in support of a contingency operation by contacting
the appropriate military branch. Q.
What is a “qualifying
exigency”? A.
The U.S. Department of Labor
has developed a list of qualifying exigencies that encompass a wide range of
specific activities in the following broad categories. Qualifying exigencies
include: •
Issues arising from a covered
military member’s short notice deployment (i.e., deployment on seven or less
days of notice) for a period of seven days from the date of notification; •
Military events and related
activities, such as official ceremonies, programs, or events sponsored by the
military or family support or assistance programs, and informational briefings
sponsored or promoted by the military, military service organizations, or the
American Red Cross; •
Certain childcare and related
activities arising from the active duty or call to active duty status of a
covered military member, such as arranging for alternative childcare, providing
childcare on a non-routine, urgent, immediate need basis, enrolling or
transferring a child in a new school or day care facility, and attending certain
meetings at school or a day care facility if they are necessary due to
circumstances arising from the active duty or call to active duty of the covered
military member; •
Making or updating financial and
legal arrangements to address a covered military member’s absence; •
Attending counseling provided by
someone other than a health care provider for oneself, the covered military
member, or the child of the covered military member, the need for which arises
from the active duty or call to active duty status of the covered military
member; •
Taking up to five days of leave to
spend time with a covered military member who is on short-term temporary, rest
and recuperation leave during deployment; •
Attending to certain post-deployment
activities, including attending arrival ceremonies, reintegration briefings and
events, and other official ceremonies or programs sponsored by the military for
a period of 90 days following the termination of the covered military member’s
active duty status, and addressing issues arising from the death of a covered
military member; and •
Any other event that the employee
and employer agree is a qualifying exigency. Q.
Can I take qualifying exigency
leave to pick up a child from school or attend a school? A.
Yes, in certain limited
circumstances. An eligible employee caring for a covered military member’s
child may use qualifying exigency leave to provide childcare on an urgent,
immediate need basis, but not on a routine, everyday basis, where the need to
provide the care arises from the active duty or call to active duty status of
the covered military member. Accordingly, an employee could use qualifying
exigency leave to provide childcare in an emergency, such as a school closure
due to inclement weather, if the employee’s need to provide the care arises
from the active duty status of a covered military member. Qualifying exigency
leave could not be used, however, on a routine basis to provide daily childcare
after school hours (although it could be used temporarily while making
arrangements for such care). Qualifying exigency leave may also be used to
attend certain meetings with school staff, if those meetings are necessary due
to the active duty or call to active duty status of the covered military member.
For example, qualifying exigency leave could be used to attend a meeting with a
teacher to discuss behavioral problems related to the child’s parent being
deployed. Qualifying exigency leave may not be used, however, for attending
routine school events, such as birthday parties or plays. Q.
For what additional events may
employers and employees agree to use qualifying exigency leave? A.
Employers and employees may
agree to cover any additional events arising from the covered military
member’s active duty or call to active duty status as qualifying exigency
leave. Such events may include leave to spend time with a covered military
member either prior to or post deployment, or to attend to household emergencies
that would normally have been handled by the covered military member. Employers
and employees must agree to both the timing and duration of any such qualifying
exigency leave and the leave may be counted against the employee’s 12 week
FMLA leave entitlement. Q.
What type of notice must I
provide to my employer when taking FMLA leave because of a qualifying exigency? A.
An employee must provide
notice of the need for qualifying exigency leave as soon as practicable. For
example, if an employee receives notice of a family support program a week in
advance of the event, it should be practicable for the employee to provide
notice to his or her employer of the need for qualifying exigency leave the same
day or the next business day. When the need for leave is unforeseeable, an
employee must comply with an employer’s normal call-in procedures absent
unusual circumstances. An
employee does not need to specifically assert his or her rights under FMLA, or
even mention FMLA, when providing notice. The employee must provide
“sufficient information” to make the employer aware of the need for FMLA
leave and the anticipated timing and duration of the leave. Q.
What are the certification
requirements for taking qualifying exigency leave? A.
The first time that an
employee requests qualifying exigency leave, an employer may require the
employee to provide a copy of the covered military member’s active duty orders
or other documentation issued by the military that indicates that the covered
military member is on active duty or call to active duty status in support of a
contingency operation, and the dates of the covered military member’s active
duty service. In
addition, each time that an employee first requests leave for one of the
qualifying exigencies, an employer may require certification of the exigency
necessitating leave. Certification supporting leave for a qualifying exigency
includes: appropriate facts supporting the need for leave, including any
available written documentation supporting the request; the date on which the
qualifying exigency commenced or will commence and the end date; where leave
will be needed on an intermittent basis, the frequency and duration of the
qualifying exigency; and appropriate contact information if the exigency
involves meeting with a third-party. Q.
Are the certification
procedures (timing, authentication, clarification, second and third opinions,
recertification) the same for qualifying exigency leave and leave due to a
serious health condition? A.
The same timing requirements
for certification apply to all requests for FMLA leave, including those for
military family leave. Thus, an employee must provide the requested
certification to the employer within the time frame requested by the employer
(which must allow at least 15 calendar days after the employer’s request),
unless it is not practicable under the particular circumstances to do so despite
the employee’s diligent, good faith efforts. If
the qualifying exigency involves a meeting with a third party, employers may
verify the schedule and purpose of the meeting with the third party.
Additionally, an employer may contact the appropriate unit of the Department of
Defense to confirm that the covered military member is on active duty or call to
active duty status. Employers
are not permitted to require second or third opinions on qualifying exigency
certifications. Employers are also not permitted to require recertification for
such leave. Q.
How much FMLA leave may I take
for qualifying exigencies? A.
An employee may take up to 12
workweeks of FMLA leave for qualifying exigencies during the twelve-month period
established by the employer for FMLA leave. Qualifying exigency leave may also
be taken on an intermittent or reduced leave schedule basis. Q.
Is the 12 weeks of qualifying
exigency leave a one-time entitlement? A.
No. If a covered military
member’s active duty or call to active duty status spans more than one FMLA
leave year, an eligible employee would be eligible to take qualifying exigency
leave in each FMLA leave year. Moreover, an eligible employee could take
qualifying exigency leave in a subsequent FMLA leave year for a different
covered military member. Finally, if the same covered military member returns
from deployment and is subsequently redeployed, the eligible employee would
again be entitled to qualifying exigency leave. Q.
How much leave can I take if I
need leave for both a serious health condition and a qualifying exigency? A.
Qualifying exigency leave,
like leave for a serious health condition, is a FMLA-qualifying reason for which
an eligible employee may use his or her entitlement for up to 12 workweeks of
FMLA leave each year. An eligible employee may take all 12 weeks of his or her
FMLA leave entitlement as qualifying exigency leave or the employee may take a
combination of 12 weeks of leave for both qualifying exigency leave and leave
for a serious health condition. Q.
Can I take qualifying exigency
leave when my “covered military member” returns from deployment? A.
Yes. An eligible employee is
entitled to take qualifying exigency leave for certain qualifying
post-deployment exigencies, including reintegration activities, for a period of
90 days following the termination of the covered military member’s active duty
status. Military Caregiver
Leave Q.
What is “military caregiver
leave”? A.
“Military caregiver leave”
is the second of the two new military family leave provisions. Such leave may be
taken by an eligible employee to care for a covered service member with a
serious injury or illness. This type of FMLA leave is based on a recommendation
of the President’s Commission on Care for America’s Returning Wounded
Warriors. Q.
Who is eligible to take
military caregiver leave? A.
An eligible employee who is
the spouse, son, daughter, parent, or next of kin of a covered service member
with a serious injury or illness may take job-protected FMLA leave to provide
care to the service member. Q.
Are families of service
members in the Regular Armed Forces eligible for military caregiver leave? A.
Yes. Military caregiver leave
extends to those seriously injured or ill members of both the Regular Armed
Forces and the National Guard or Reserves. Q.
Who is a “covered service
member”? A.
A “covered service member”
is a current member of the Armed Forces, including a member of the National
Guard or Reserves, who is undergoing medical treatment, recuperation, or
therapy, is otherwise in outpatient status, or is otherwise on the temporary
disability retired list, for a serious injury or illness incurred in the line of
duty on active duty. Q.
Can I take military caregiver
leave if I am the stepson or stepdaughter of the covered service member or if I
am the stepparent of a covered service member? A.
Yes. Under the FMLA for
military caregiver leave, a “son or daughter of a covered service member”
means a covered service member’s biological, adopted, or foster child,
stepchild, legal ward, or a child for whom the employee stood in loco parentis,
and who is of any age. Under the FMLA for military caregiver leave, a “parent
of a covered service member” means a covered service member’s biological,
adoptive, step or foster father or mother, or any other individual who stood in
loco parentis to the covered service member. This term does not include parents
“in law.” The law does not include son-in-law or daughter-in-law. Q.
What is a “serious injury or
illness”? A.
A “serious injury or
illness” is an injury or illness incurred by a covered service member in the
line of duty on active duty that may render the service member medically unfit
to perform the duties of the member’s office, grade, rank, or rating. Q.
How much leave may I take to
care for a covered service member? A.
An eligible employee is
entitled to take up to 26 workweeks of leave during a “single 12-month
period” to care for a seriously injured or ill covered service member. The
“single 12-month period” begins on the first day the eligible employee takes
military caregiver leave and ends 12 months after that date, regardless of the
method used by the employer to determine the employee’s 12 workweeks of leave
entitlement for other FMLA-qualifying reasons. Q.
May I take FMLA leave to both
care for a covered service member and for another FMLA qualifying reason during
this “single 12-month period?” A.
Yes. The regulations provide
that an eligible employee is entitled to a combined total of 26 workweeks of
military caregiver leave and leave for any other FMLA-qualifying reason in this
“single 12-month period,” provided that the employee may not take more than
12 workweeks of leave for any other FMLA-qualifying reason during this period.
For example, in the single 12-month period an employee could take 12 weeks of
FMLA leave to care for a newborn child and 14 weeks of military caregiver leave,
but could not take 16 weeks of leave to care for a newborn child and 10 weeks of
military caregiver leave. Q.
Can I carry-over unused weeks
of military caregiver leave from one 12-month period to another? A.
No. If an employee does not
use his or her entire 26-workweek leave entitlement during the “single
12-month period” of leave, the remaining workweeks of leave are forfeited.
After the end of the “single 12-month period” for military caregiver leave,
however, an employee may be entitled to take FMLA leave to care for the covered
military member if the member is a qualifying family member under non-military
FMLA and he or she has a serious health condition. Q.
Can I take military caregiver
leave as the son or daughter of a covered service member if I am 18 years old or
older? A.
Yes. The new FMLA regulations
contain special definitions for son and daughter for both of the military family
leave provisions. For military caregiver leave, an eligible employee may take
leave if he or she is the “son or daughter of a covered service member,”
which is defined as the covered service member’s biological, adopted, or
foster child, stepchild, legal ward, or a child for whom the covered service
member stood in loco parentis, and who is of any age. Q.
Who is a service member’s
“next of kin” for purposes of military caregiver leave? A.
The regulations define a
covered service member’s “next of kin” as the service member’s nearest
blood relative, other than the covered service member’s spouse, parent, son,
or daughter, in the following order of priority: blood relatives who have been
granted legal custody of the service member by court decree or statutory
provisions, brothers and sisters, grandparents, aunts and uncles, and first
cousins, unless the covered service member has specifically designated in
writing another blood relative as his or her nearest blood relative for purposes
of military caregiver leave under FMLA, in which case the designated individual
shall be deemed to be the covered service member’s next of kin. The
regulations provide that all family members sharing the closest level of
familial relationship to the covered service member shall be considered the
covered service member’s next of kin, unless the covered service member has
specifically designated an individual as his or her next of kin for military
caregiver leave purposes. In the absence of a designation, where a covered
service member has three siblings, for example, all three siblings will be
considered the covered service member’s next of kin. Q.
Can I take military caregiver
leave to care for a service member who is no longer serving in the military?
What about for a retired member of the military? A.
Yes. Military caregiver leave
covers service members who are injured or become seriously ill while on active
duty or within five years of leaving the Armed Forces and also covers service
members on the temporary disability retired list. Service members on the
permanent disability retired list, however, are not covered. Q.
Can I take military caregiver
leave for more than one seriously injured or ill service member or more than
once for the same service member if he or she has a subsequent serious injury or
illness? A.
Yes. By regulation, military
caregiver leave is a “per-service member, per-injury” entitlement.
Accordingly, an eligible employee may take 26 workweeks of leave to care for one
covered service member in a “single 12-month period,” and then take another
26 workweeks of leave in a different “single 12-month period” to care for
another covered service member. An eligible employee may also take 26 workweeks
of leave to care for a covered service member in a “single 12-month period,”
and then take another 26 workweeks of leave in a different “single 12-month
period” to care for the same service member with a subsequent serious injury
or illness (e.g., if the service member is returned to active duty and suffers
another injury). Q.
Can I take additional military
caregiver leave if a covered service member receives a serious injury or illness
and then, at a later time, manifests a second serious injury or illness? A.
Yes. If a covered service
member incurs a serious injury or illness and manifests a second serious injury
or illness at a later time, an eligible employee would be entitled to an
additional 26-workweek entitlement to care for the covered service member in a
separate “single 12-month period.” However, the covered service member must
still be a member of the Armed Forces, or the National Guard or Reserves,
including those on the temporary disability retired list, and the second serious
injury or illness must have been incurred in the line of duty on active duty.
For example, an eligible employee may take military caregiver leave to care for
a covered service member who has suffered a limb amputation in the line of duty
on active duty; if that same service member manifests a brain injury a year
later arising from the same incident, the employee would be eligible to take
another 26 workweeks of military caregiver leave at that time. Q.
Can I care for two seriously
injured or ill service members at the same time? A.
Yes. However, an eligible
employee may not take more than 26 workweeks of leave during each “single
12-month period.” Q.
What type of notice must I
provide to my employer when taking military caregiver FMLA leave because of a
qualifying exigency? A.
An employee must provide 30
days advance notice of the need to take FMLA leave for planned medical treatment
for a serious injury or illness of a covered service member. When 30 days
advance notice is not possible, the employee must provide notice as soon as
practicable taking into account all of the facts and circumstances. When the
need for leave is unforeseeable, an employee must comply with an employer’s
normal notice or call-in procedures, absent unusual circumstances. An
employee does not need to specifically assert his or her rights under FMLA, or
even mention FMLA, when providing notice. The employee must provide
“sufficient information” to make the employer aware of the need for FMLA
leave and the anticipated timing and duration of the leave. Q.
Are there certification
requirements for taking military caregiver leave? A.
Yes. When leave is taken to
care for a covered service member with a serious injury or illness, an employer
may require an employee to obtain a certification completed by an authorized
health care provider of the covered service member. This
optional form reflects certification requirements so as to permit the employee
to furnish appropriate information to support his or her request for leave to
care for a covered service member with a serious injury or illness. Q.
Are the certification
procedures (timing, authentication, clarification, second and third opinions,
recertification) the same for military caregiver leave and leave due to a
serious health condition? A.
The same timing requirements
for certification apply to all requests for FMLA leave, including those for
military family leave. Thus, an employee must provide any requested
certification to the employer within the time frame requested by the employer
(which must allow at least 15 calendar days after the employer’s request),
unless it is not practicable under the particular circumstances to do so despite
the employee’s diligent, good faith efforts. The
regulations also permit employers to authenticate and clarify medical
certifications submitted to support a request for military caregiver leave using
the procedures applicable to FMLA leave taken to care for a family member with a
serious health condition. Employers
are not permitted to require second or third opinions on military caregiver
leave. Employers are also not permitted to require recertification for such
leave. Q.
Are private health care
providers, as well as military health care providers, permitted to complete a
certification for military caregiver leave? A.
Yes. A private health care
provider can complete certifications for military caregiver leave if the health
care provider is either a DOD TRICARE network authorized private health care
provider or a DOD non-network TRICARE authorized private health care provider.
Department of Defense health care providers and Veterans Affairs health care
providers can also complete a certification for military caregiver leave. See 29
CFR 827.310(a). Q.
What if my covered service
member receives a catastrophic injury and the military issues me travel orders
to immediately fly to Landstuhl Regional Medical Center in Germany to be at his
bedside. Do I have to provide a completed certification before flying to
Germany? A.
No. Given the seriousness of
the injuries or illnesses incurred by a service member whose family receives an
“invitational travel order” (ITO) or “invitational travel authorization”
(ITA), and the immediate need for the family member at the service member’s
bedside, the regulations require an employer to accept the submission of an ITO
or ITA, in lieu of the DOL optional certification form or an employer’s own
form, as sufficient certification of a request for military caregiver leave
during the time period specified in the ITO or ITA. The
regulations also permit an eligible employee who is a spouse, parent, son,
daughter or next of kin of a covered service member to submit an ITO or ITA
issued to another family member as sufficient certification for the duration of
time specified in the ITO or ITA, even if the employee seeking leave is not the
named recipient on the ITO or ITA. If
the covered service member’s need for care extends beyond the expiration date
specified in the ITO or ITA, the regulations permit an employer to require an
employee to provide certification for the remainder of the employee’s leave
period. Q.
How is leave designated if it
qualifies as both military caregiver leave and leave to care for a family member
with a serious health condition? A.
For military caregiver leave
that also qualifies as leave taken to care for a family member with a serious
health condition, the regulations provide that an employer must designate the
leave as military caregiver leave first. The Department believes that applying
military caregiver leave first will help to alleviate some of the administrative
issues caused by the running of the separate “single 12-month period” for
military caregiver leave. The
regulations also prohibit an employer from counting leave that qualifies as both
military caregiver leave and leave to care for a family member with a serious
health condition against both an employee’s entitlement to 26 workweeks of
military caregiver leave and 12 workweeks of leave for other FMLA-qualifying
reasons.
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